Punjab-Haryana High Court
Aryan Singh vs C.B.I And Anr on 4 May, 2022
Author: Arvind Singh Sangwan
Bench: Arvind Singh Sangwan
CRM-M-54107-2021 and connected case -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
I. CRM-M-54107-2021
Date of decision : May 04, 2022
Aryan Singh ....Petitioner
Versus
Central Bureau of Investigation and another ....Respondents
II. CRM-M-8233-2022
Gautam Cheema ....Petitioner
Versus
Central Bureau of Investigation ....Respondent
CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN
Present: Mr. Aman Pal, Advocate for the petitioner
(in CRM-M-54107-2021)
Mr. Bipan Ghai, Senior Advocate with
Mr. Rishabh Singla, Advocate for the petitioner
(in CRM-M-8233-2022)
Mr. Sumeet Goel, Senior Advocate with
Mr. Paramvir Dhull, Advocate
for respondent No.1-CBI.
Mr. Raman Sihag, Advocate
for respondent No.2.
ARVIND SINGH SANGWAN, J.
Both the above-mentioned petitions shall be disposed of by this common judgment.
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Prayer made in the above mentioned petitions is for quashing of the FIR No.RC0512020S0001 dated 29.4.2020 registered at Police Station State Grime Branch, Chandigarh under Sections 452, 323, 365, 342, 186, 225, 506 and 120-B IPC (earlier registered as FIR No.195 dated 30.8.2014 under Sections 452, 323, 365, 342, 225, 186, 506, 120-B IPC at Police Station Phase-1, Mohali) as well as all the subsequent proceedings arising out of the same.
Learned Senior Counsel appearing for the petitioner-Gautam Cheema submits that initially, FIR No.195 dated 30.8.2019 was got registered by ASI Dilbagh Singh at Police Station Phase-I, Mohali against petitioner- Gautam Cheema, the then Inspector General of Police, one Ajay |Chaudhary and two unknown persons with the allegations that on 26.8.2014 at about 10.45 p.m. he was the duty officer when HC Ramesh Kumar brought a person in the Police Station. He disclosed his name as Sumedh Gulati resident of Mohali and he was a proclaimed offender in FIR No.62 dated 23.3.2014 under Sections 420, 467, 468, 471 and 120-B IPC registered at Police Station Phase-I, Mohali. When ASI Dilbagh Singh started interrogating him, in the meantime, petitioner- Gautam Cheema, along with Ajay Chaudhary and two unidentified persons came at Police Station in a private car and after disclosing his identity took Sumedh Gulati with him. ASI Dilbagh Singh followed him and they reached Max Hospital, Mohali, where he saw that petitioner-Gautam Cheema, along with 3-4 persons, were present in Room No.2202, where one Kricpy Khera wife of Devinder Singh Gill was admitted. Later on, from the statements of other witnesses, he came to know that the 2 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case -3- petitioner forcibly took him there and extended threat and gave slap and also issued threat to Kricpy Khera wife of Devinder Singh Gill to withdraw the complaints against him. Thereafter, ASI Dilbagh Singh rescued him and brought him back to the Police Station and arrested him as per rules vide DDR No.48 dated 26.8.2014. On the basis of his complaint, FIR No.195 under Sections 452, 323, 365, 342, 225, 186, 506 and 120-B IPC was registered against petitioner-Gautam Cheema, Ajay Chaudhary and two unidentified persons.
Learned Senior Counsel has further submitted that even one FIR No.135 dated 2.9.2014 was also got registered under Sections 452, 342, 323, 354, 506 and 120-B IPC read with Section 25 of the Arms Act at the instance of aforesaid Kricpy Khera wife of Devinder Singh Gill with the allegations that the petitioner forcibly entered in her room along with Ajay Chaudhary and by pointing a pistol towards Sumedh Gulati, he threatened both of them.
Learned Senior Counsel further has submitted that, later on, both the sides gave applications before the higher authorities for conducting the proper investigation and the petitioner-accused alleged that he has been falsely implicated due to mala fide motive of the complainant side whereas even complaints are made by Kricpy Khera with regard to FIR No.135 for fair investigation of the case. Learned Senior Counsel has then referred to an order dated 4.3.2020 passed in CRM-M-30833-2017 filed by Kricpy Khera and others Vs. State of Punjab in which a prayer was made to transfer the investigation of FIR No.135 to CBI as well as another CRM-M-30829-2017 3 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case -4- filed by Kricpy Khera and another Vs. State of Punjab and others for transfer of investigation of present FIR No.195 to CBI.
Learned Senior Counsel also submits that though the petitioner was not arrayed as respondent in the said petition, however, a co-ordinate Bench allowed the same by passing the following order :-
"10. I have heard counsel for the parties and with their able assistance have gone through the pleadings of the case.
11. After going through the pleadings of both the cases, it is borne out that petitioner No.2-Devinder Singh Gill, who was in property business, came in contact with Gautam Cheema, IPS, in the year 2008, when he was SSP Khanna. With the passage of time, they developed family relations as well as business relations and as detailed out in para 4 of the petition, number of business transactions were exchanged. Through Gautam Cheema, IPS, petitioner No.2 was introduced to Ajay Chaudhary, an officer in Indian Defence Services. With the time span, relation between petitioner No.2 and Gautam Cheema turned sour, as reflected above. The only question, which this court has to reply is that whether under these facts and circumstances, the investigation under both the FIRs ought to be transferred to any independent investigating agency for fair investigation considering the inordinate delay in concluding the investigation.
12. In FIR No.195 dated 30.08.2014 (supra) which was lodged by ASI Dilbagh Singh, there are specific
4 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case -5- allegations against Gautam Cheema that when he was interrogating Sumedh Gulati (a family friend and partner of petitioner No.2), who was PO in some other FIR, at that time Gautam Cheema, the then IG, in an inebriated state, while accompanying with Ajay Chaudhary and two other unidentified persons, forcibly took Sumedh Gulati from his legal custody and took Sumedh Gulati to the Max Hospital where petitioner No.1-Kricpy Khera (wife of petitioner No.2) was admitted, gave threats and slaps to Sumedh Gulati and also issued threats to Kricpy Khera, in order to pressurize petitioner No.1-Kricpy Khera to withdraw the complaints filed by her against said Gautam Cheema, otherwise to face dire consequences. It was ASI Dilbagh Singh, who saved Sumedh Gulati from their clutches.
13. In FIR No.135 dated 02.09.2014 (supra) which was lodged by the petitioners herein, there are allegations that on the intervening night of 20/21.03.2014 at about 12.00 mid night, Gautam Cheema, IPS, IG and Ajay Chaudhary forcibly entered their house and locked petitioner No.2 in one room and molested petitioner No.1. It was also alleged that Ajay Chaudhary also aimed his pistol on the temple of Sumedh Gulati, who was present in their house at that time.
14. After issuing notice of motion in the instant matters, three status reports have been filed by the respondent-State, which have been read in detail by the learned State counsel during the course of his arguments. Both the FIRs in question pertain to the year 2014 and from the perusal of the status 5 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case -6- reports filed by the respondent-State, it is crystal clear that since the year 2014, the matter was initially investigated by the then SP(D), District SAS Nagar. Thereafter, the investigation was entrusted to a Special Investigation Team (SIT), which team during the course of investigation, inspected the spot, prepared the site plan and recorded the statements of witnesses under Section 161 Cr.P.C. The CCTV footage of Max Hospital was obtained and perused. However, by an order dated 03.09.2014 of SSP, District SAS Nagar, another SIT was constituted and thereafter, by an order dated 16.09.2014 of the Director Bureau of Investigation, another SIT was constituted in the matter. After that, by an order dated 27.01.2016 of the Director Bureau of Investigation, another SIT was constituted to investigate the matter.
Interestingly, by an order dated 22.10.2018 of the Director General of Police, Punjab, Chandigarh, the investigation in the said two FIRs was transferred to the Chief Director, Vigilance Bureau, Punjab and at present, the matter is being investigated by the Senior Superintendent of Police (Vigilance Bureau) Range SAS Nagar (Mohali).
15. In the landmark case of State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal and others, (2010) 3 Supreme Court Cases 571, the Constitution Bench of the Apex Court has held that in exceptional situations where it becomes necessary to provide credibility to and instill confidence in investigations or where such an order may be necessary for doing complete justice and 6 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case -7- enforcing the fundamental rights and on being satisfied that the material discloses a prima facie case calling for investigation by the CBI, High Court can issue direction in this regard.
16. In the case of K.V. Rajendran vs. Superintendent of Police, CB CID South Zone, Chennai and others (supra) it has been held by the Hon'ble Apex Court that where high officials of State authorities are involved or the accusation itself is against the top officials of the investigating agency, thereby, allowing them to influence the investigation or where the investigation is prima facie found to be tainted/biased, investigation can be transferred to any other independent agency like CBI. A similar observation was made by the Hon'ble Apex Court in E.Sivakumar vs. Union of India and others (supra).
17. It appears that the SITs as constituted by the State are unable to conclude an investigation against one of their own, considering that the said Gautam Cheema is in the police force and at present holding the rank of IG (Crimes). The manner in which the investigation of these FIRs are being transferred/entrusted to one SIT to another, or the other subsidiary agency of the Punjab Police, do not inspire confidence of this court. Prima facie, the opinion this court is forming, is that a fair investigation would not be possible in such circumstances. The allegations as set out in the petitions and in the FIRs are serious, considering that they pertain to the conduct of a serving highly ranked police officer and deserve a thorough 7 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case -8- investigation, especially in the background of the allegations that a person of the police force is indulging in Benami transactions and wielding influence to get FIRs registered, and removing person being interrogated by the Investigating Officer from his custody amongst other acts such as criminal intimidation.
18. Consequently, both the petitions are allowed and the investigation of these FIRs is being transferred to the Central Bureau of Investigation with immediate effect. Since the genesis of the dispute arises from various alleged property transactions done by Gautam Cheema and Ajay Chaudhry, the same must be investigated as well. The State of Punjab is directed to hand over the entire record of the investigation done so far to the Superintendent of Police, CBI, Sector 30, Chandigarh within a period of two weeks. The CBI is also directed to look into the question as to why there has been an inordinate delay in concluding the investigation. Let the preliminary status report be submitted after a period of two months from taking over the investigation."
It is argued by the learned Senior Counsel that after the case was entrusted to the CBI, FIR No.RC0512020S0001 dated 29.4.2020 was registered at Police Station State Crime Branch, Chandigarh under Sections 452, 323, 365, 342, 186, 225, 506 and 120-B IPC and the investigation was conducted and the CBI has submitted the report under Section 173(2) Cr.P.C.
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against petitioner-Gautam Cheema, Aryan Chaudhary and Varun Utreja, Rashmi Devi, and Aryan Singh.
Learned Senior Counsel has referred to Point 16.5 of the 173(2) Cr.P.C. report of CBI to submit that it has come in the investigation petitioner-Gautam Cheema was in touch with accused Aryan Singh, who was running a hotel and they exchanged Whatsapp message in which, Aryan Singh allegedly informed that Sumedh Gulati, who is a proclaimed offender in a case with Punjab Police, is at Max Hotel, Mohali. As per the Whatsapp message, it was informed that Munna (Sumedh Gulati) is at Max Hospital and he should be picked up by the police. Thereafter, Aryan Singh, along with one Shiv Singh Rawat, reached Max Hospital, Mohali and his friend Ankush and Navjot accompanied him and he told the police that Sumedh Gulati, proclaimed offender should be get arrested. Thereafter, a message was sent to the PCR that a person, who is a proclaimed offender in Mataur Police Station, is present in Max Hospital. Thereafter, the PCR reached at the Max Hospital with HC Ramesh Kumar and he, along with Constable Manjit Singh, took Sumedh Gulati towards the official vehicle and took him to the near Police Station. It is further stated in the report that aforesaid FIR No.62 dated 22.3.2014 under Section 406, 420, 120-B IPC was registered in Police Station, Phase-I, Mohali against Devinder Singh Gill, Sumedh Gulati, Manpreet Chahal Gulati, Neeraj Wadera and Dhan Raj on a complaint given by Yash Pal Gupta regarding cheating and criminal breach of trust by M/s Sky Heights Housing Building Society and all the aforesaid persons were declared proclaimed offenders by the Court of the Chief Judicial Magistrate, 9 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case - 10 -
Mohali vide order dated 19.5.2014. It is further stated in the report that after Sumedh Gulati was brought in the Police Station, petitioner-Gautam Cheema came to the Police Station and took him in a vehicle to the Max Hospital and then they went to the room of Kricpy Khera where he extended threat to both of them to withdraw the complaints. Thereafter, Dilbagh Singh brought proclaimed offender Sumedh Gulati back to the Police Station, Phase-I, Mohali and registered DDR No. 48 describing the incident and, thereafter, the FIR No.195 was registered. Para 16.20 with regard to visit of petitioner- Gautam Cheema to the Max Hospital, reads as under :-
"16.20. Investigation has established that the analysis of CCTV footage of 26.8.2014 of main gate of Max Hospital, Mohali revealed that at about 12.00 a.m. (midnight) on the intervening night of 26/27.8.2014, accused Gautam Cheemma arrived at Max Hospital in the black Audi Car driven by accused Varun Utreja along with accused Vicky Vera. The said Audi Car No.CH01U0082 driven by Sh. Varun Utreja along with accused persons namely Gautam Cheema and Vicky Verma was followed by another vehicle Innova CH01AP6309 of above Vicky Verma in which Sumedh Gulati and his wife were brought there. All of them entered in the hospital. After about 5 minutes of their arrival, a Police Party led by ASI Dilbagh Singh also reached at Max Hospital in the private vehicle Tata Indigo. At 00.20 A.M. on the intervening night of 26/27.8.2014, ASI Dilbagh Singh took Sumedh Gulati along with them in said Indigo car."
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The learned Senior Counsel argued that if petitioner was to abduct proclaimed offender Sumedh Gulati, he could have never asked Aryan Singh to inform the police and rather could have come to hospital directly and this aspect of the case was never considered by the CBI.
It is further stated in the report that the accused persons were in touch with each other as per the record details and their call location was near Max Hospital. Further, Paras 16.29 and 16.30, which are the concluding part of the Investigation report, reads as under :-
"16.29.The facts and circumstances narrated abaove has disclosed that accused Gautam Cheema along with co-accused persons namely Ajay Choudhary, Varun Utreja, Ms. Rashmi Negi, Vicky Kumar and Aryan in connivance with each other got Suemdh Gulati, PO arrested. In furtherance of above criminal conspiracy accused Gautam Cheema along with aboe co-accused persons illegally and without any authority trespassed in the premises of Police Station Phase-1, Mohali, obstructed police officials in the discharge of their public functioning.
Accused Gautam Cheema along with his accomplices also forcibly kidnapped Sh. Sumedh Gulati, PO from the lawful custody of ASI Dilbagh Singh knowing fully well that Sumedh Gulati has been declared PO by the competent Court and is in police custody. Accused Gautam Cheema also trespassed in room No.2202 of Max Hospital occupied by Ms. Kricpy Khera, slapped PO Sumedh Gulati causing hurt and threatened Ms. Kricpy Khera of dire consequences, if she did not
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withdraw the complaints made by her against them in the police.
16.30. The evidence brought on record prima facie reveals that accused Gautam Cheema along with other co- accused persons namely Ajay Choudhary, Varun Utreja, Ms. Rashmi Negi, Vicky Verma and Aryan have committed the offence under Sections 120-B r/w 452, 323, 365, 342, 225, 186, 506 IPC and substantive offences thereof."
Learned Senior Counsel has also relied upon CCTV footage, which is part of 173(2) Cr.P.C. report to submit that even as per the own case of the prosecution as per the report in paragraph 16.20, the petitioner was in a different car and Sumedh Gulati, proclaimed offender came in a different car and, therefore, the entire allegation against the petitioner at the instance of complainant ASI Dilbagh Singh that the petitioner has picked up Sumedh Gulati from the Police Station is totally after thought information. Learned Counsel has also submitted that in the CCTV footage, petitioner-Aryan Singh was not there.
It is also submitted that neither State Police nor CBI collected the CCTV footage of Police Station Phase-1, Mataur, where petitioner-Gautam Cheema allegedly went and brought Sumedh Gulati, a proclaimed offender to Max Hospital but counsel has argued that even there is no DDR recorded by ASI Dilbagh Singh about the arrest of Sumedh Gulati as it is the case of the prosecution itself that the DDR was registered only after ASI Dilbagh Singh brought Sumedh Gulati back from Hospital. Counsel has further submitted that all this show that petitoner-Gautam Cheema never went 12 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case - 13 -
to Police Station Phase-1, Mataur and, therefore, allegation of abduction or kidnapping of proclaimed offender Sumedh Gulati is not made out.
It is argued by the learned Senior Counsel that the entire prosecution of the petitioner is mala fide as Kricpy Khera and her husband Devinder Singh Gill and the other accused, including Sumedh Gulati, PO, are involved in a number of FIRs of cheating various persons. The list of FIRs is as under :-
Sr.No. FIR No. Dated Section Police Station Accused
01. A0011 4.5.2011 Bribery CBI Davinder
02. 62 22.3.2014 420, 120-B IPC Phase-1, Mohali Davinder & Sumedh Gulati
03. 196 20.2.2014 420, 120-B IPC Chandimandir Davinder
04. 236 14.8.2014 420, 120-B IPC Sector 17, Panchkula Davinder
05. 150 4.10.2014 420, 120-B IPC Phase-88, Mohali Davinder
06. 127 28.11.2014 420, 120-B IPC Phase-11, Mohali Davinder and Kricpy
07. 17 1.10.2015 420, 120-B IPC NRI Wing, Mohali Kricpy
08. 26 3.2.2016 420, 120-B IPC Moga Kricpy
09. 52 or 3.6.2016 420, 120-B IPC Phase-11, Mohali Davinder and 56 Kripcy
10. 75 6.7.2016 420, 120-B IPC Phase11, Mohali Davinder and Immig. Kripcy
11. 76 7.7.2016 420, 120-B IPC Phase-11, Mohali Davinder and Immig. Kripcy
12. 267 28.7.2016 420, 120-B IPC Sangrur Kricpy
13. 62 3.6.2016 420, 120-B IPC Phase-11, Mohali Davinder
14. 124 15.8.2016 420, 120-B IPC Mataur Davinder
15. 69 13.6.2017 420, 120-B IPC Phase-11, Mohali Davinder and Immig. Kricpy
16. 121 9.9.2017 420, 120-B IPC Sangrur Kricpy Immig.
17. 119 13.10.2017 420, 120-B IPC Phase-11, Mohali Davinder and Immig. Kricpy
18. Multi 2017 420, 120-B IPC EQW, Mohali Davinder and Kricpy
19. 55 26.3.2021 420, 120-B IPC Sector 36, Davinder Chandigarh
20. 158 31.7.2019 420, 120-B IPC Sector 36, Davinder
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Chandigarh
21. 3 8.1.2016 419, 420, 465, Phase-1, Mohali Davinder Gil, 467, 471, 120-B Sumedh Gulati IPC and Dhanraj
22. 32 17.2.2022 406, 420, 120-B Phase-1, Mohali Davinder, IPC, Section 13 Kricpy, and Ravneet
23. 199 24.5.2018 406, 420, 120-B Sector 36, Davinder, IPC Chandigarh Kricpy, Jyoti Thakur, Paramjit
24. 271 3.9.2016 420 IPC Sector 36, Davinder, Chandigarh Kricpy, Pooja Mahajan
25. 5 22.3.2022 406, 420, 120-B NRI Wing, Mohali Davinder, IPC Kricpy, Sonam, Vivek
26. 136 23.3.2022 332, 353, 186, Sohana Kricpy Khaira 307 IPC and unknown
27. 10 2015 420 IPC Phase-11, Mohali Davinder and Kricpy
28. 100 2015 420 IPC Phase-11, Mohali Davinder and Kricpy
29. 141 11.12.2015 420 IPC State Crime Davinder and Kricpy
30. 123 13.12.2015 406, 420, 120-B Phase-11, Mohali Davinder and IPC Kricpy
31. 270 2018 186, 353 IPC Sector-17, Kricpy Chandigarh
32. 05 22.3.2022 406, 420, 120-B NRI Wing, Mohali Davinder Gill, IPC and Section Kricpy Khera, 13 Sonam, Vivek Sharma
33. 136 23.3.2022 353, 332, 186 IPC Sohana, Mohali Kricpy Khera
34. 270 21.4.2022 186, 353, 186 IPC NWB
35. 236 2014 183, 313 IPC Sector-17, Chandigarh It is also argued by the Learned Senior Counsel that though in the present FIR, Kricpy Khera or her husband Devinder Singh Gill are neither complainant nor the victim, however, they concealed this fact before this Court when the order dated 4.3.2020 was passed and the complainant in 14 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case - 15 -
this case is ASI Gurbachan Singh, whereas a complaint in FIR No.135 was Kricpy Khera and succeeded in getting both the cases clubbed.
It is next argued that the co-ordinate Bench while issuing direction to CBI to further conduct the investigation, has noticed two important facts that the SIT constituted by the State is unable to conclude the investigation because petitioner-Gautam Cheema is a senior Police Officer holding the rank of IG (Crime) and there are serious allegations leveled by petitioner (Kricpy Khera in the aforesaid petition) that he is holding Benami transactions.
Learned Senior Counsel submits that the petitioner never challenged the transfer of investigation to CBI having faith in investigation by CBI and in the final report, both the apprehensions as represented by aforesaid Kricpy Khera (though she was neither a complainant nor a victim in the present FIR) that under the influence of the petitioner, SIT is not concluding the investigation and the petitioner is holding Benami transactions were not proved from the final report submitted by the CBI under Section 173(2) Cr.P.C. and, therefore, on the face of it, it has come on record that the allegations leveled by Kricpy Khera and her husband Devinder Pal Singh Gill, who are accused in a number of cases of cheating various persons for sending them abroad on by alluring to buy property and have minted crores of rupees, were not found to be correct and, therefore, the prosecution of petitioners is malicious prosecution.
Learned Senior Counsel has further submitted that even on the face of the language of FIR No.195, which later on, was converted into FIR 15 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case - 16 -
No.RC0512020S0001 by the CBI, no offence is made out as it is the case of the prosecution that petitioner-Aryan Singh gave information to petitioner Gautam Cheema (IG) that one Sumedh Gulati who is a proclaimed offender and is co-accused with Devinder Pal Singh Gill (also proclaimed offender) is present at Max Hospital, Mohali and, therefore, the petitioner, being a Police Officer asked him to give information to the concerned Police Station and upon information given by Aryan Singh, PCR came there and took Sumedh Gulati to the Police Station Phase-I, Mohali where complainant ASI Sukhwinder Singh met him. The second part of the FIR even as per the investigation of CBI as per the paragraph 16.29 rebuts the allegation in the original FIR registered by the State Police that petitioner-Gautam Cheema took away Sumedh Gulati from Police Station Phase-I, Mohali and brought him to Max Hospital as it has come in the investigation of CBI that both of them have came in different vehicles and there is no CCTV footage of Police Station Phase-1, Mataur that petitioner ever visited it. It is not the case of either State Police or CBI that ASI Sukhwinder Singh entered the room of Krispy Khera where the so called threat was extended by petitioner-Gautam Cheema to Sumedh Gulati on Krispy Khera and, therefore, it is argued that the entire allegations, even as per the CBI investigation fall flat and the mala fide on the part of Krispy Khera and her husband Devinder Pal Singh, is apparent on record as they are habitual criminals as they have cheated a large number of people from general public of their valuable money by alluring the either for sending them abroad or for the purpose of selling some property. The learned Senior Counsel submits that the order dated 4.3.2020 vide which 16 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case - 17 -
the investigation was transferred from State Police to CBI has virtual come to the rescue of the petitioner as in the investigation conducted by the CBI, the allegation leveled by Kricpy Khera and her husband Devinder Pal Singh Gill regarding Benami transactions or extended threat are not proved.
Learned Senior Counsel has relied upon Hridaya Ranjan Pd. Verma and others Vs. State of Bihar and another to submit that where the criminal proceedings is manifestly attended with malafide and/or wreaking vengeance with the accused with a view to spite him due to private personal grudge, the same can be quashed. The Hon'ble Supreme Court while relying upon the judgment of Bhajan Lal's case has observed so.
Learned Senior counsel has then referred to Asmathunnisa Vs. State of A.P. and another, wherein the following observation is made by the Hon'ble Supreme Court :-
"23. This court in Zandu Pharmaceutical Works Ltd. & Others v. Mohd. Sharaful Haque & Another (2005) 1 SCC 122 observed thus:-
"It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/ continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant
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has alleged and whether any offence is made out even if the allegations are accepted in toto."
24. A three-Judge Bench of this Court in Inder Mohan Goswami v. State of Uttaranchal (2007) 12 SCC 1 (wherein one of us, namely, Dalveer Bhandari, J. was the author of the judgment) has examined scope and ambit of Section 482 of the Criminal Proce- dure Code. The Court in the said case observed that inherent powers under Section 482 should be exercised for the advance- ment of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be fully justified in preventing injustice by invoking inherent powers of the court.
25. In Devendra and Others v. State of Uttar Pradesh and An- other (2009) 7 SCC 495, this court observed as under:-
"There is no dispute with regard to the aforementioned propositions of law. However, it is now well settled that the High Court ordinarily would exercise its jurisdiction under Section 482 of the Code of Criminal Procedure if the allegations made in the first information report, even if given face value and taken to be correct in their entirety, do not make out any offence. When the allegations made in the first information report or the evidence collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing."
26. In State of A.P. v. Gourishetty Mahesh and Others (2010) 11 SCC 226, this court observed that the power under section 482 of the Code of Criminal Procedure is wide but has to be exercised with great care and caution. The interference must be on sound principle and the inherent power should not be exercised to stifle 18 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case - 19 -
the legitimate prosecution. The court further observed that if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is up to the High Court to quash the same in exercise of its inherent power under section 482 of the Code.
27. In a recent decision in M. Mohan v. The State 2011 (3) SCALE 78 this Court again had an occasion to consider the case of similar nature and this court held that if all the facts mentioned in the complaint are accepted as correct in its entirety and even then the complaint does not disclose the essential ingredients of an offence, in such a case the High Court should ensure that such frivolous prosecutions are quashed under its inherent powers un- der section 482 of the Cr.P.C.
28. When we apply the ratio of the settled principles of law to the facts of this case, then, in our considered opinion, the High Court ought to have exercised its jurisdiction under section 482 of the Code of Criminal Procedure and quashed the complaint qua the appellant only to prevent abuse of the process of law.
29. Consequently, we set aside the impugned judgment passed by the High Court and quash the complaint qua the appellant in Crime No.50 of 2006, Police Station Jubilee Hills, Hyderabad, Andhra Pradesh."
Learned Senior counsel has also relied upon General Officer Co- manding Vs. CBI and another, wherein the Hon'ble Supreme Court has observed as under :-
"47. Then comes the issue of such a duty being performed in good faith. 'Good faith' means that which is founded on genuine belief and commands a loyal performance. The act which pro- ceeds on reliable authority and accepted as truthful is said to be 19 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case - 20 -
in good faith. It is the opposite of the intention to deceive. A duty performed in good faith is to fulfil a trust reposed in an official and which bears an allegiance to the superior authority. Such a duty should be honest in intention, and sincere in professional execution. It is on the basis of such an assessment that an act can be presumed to be in good faith for which while judging a case the entire material on record has to be assessed.
48. The allegations which are generally made are, that the act was not traceable to any lawful discharge of duty. That by itself would not be sufficient to conclude that the duty was performed in bad faith. It is for this reason that the immunity clause is con- tained in statutory provisions conferring powers on law enforc- ing authorities. This is to protect them on the presumption that acts performed in good faith are free from malice or illwill. ?The immunity is a kind of freedom conferred on the authority in the form of an exemption while performing or discharging official duties and responsibilities. The act or the duty so performed are such for which an official stands excused by reason of his office or post.
49. It is for this reason that the assessment of a complaint or the facts necessary to grant sanction against immunity that the chain of events has to be looked into to find out as to whether the act is dutiful and in good faith and not maliciously motivated. It is the intention to act which is important.
50. A sudden decision to do something under authority or the purported exercise of such authority may not necessarily be pre- determined except for the purpose for which the official pro- ceeds to accomplish. For example, while conducting a raid an of- ficial may not have the apprehension of being attacked but while performing his official duty he has to face such a situation at the 20 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case - 21 -
hands of criminals and unscrupulous persons. The official may in his defence perform a duty which can be on account of some miscalculation or wrong information but such a duty cannot be labelled as an act in bad faith unless it is demonstrated by posi- tive material in particular that the act was tainted by personal motives and was not connected with the discharge of any official duty. Thus, an act which may appear to be wrong or a decision which may appear to be incorrect is not necessarily a malicious act or decision. The presumption of good faith therefore can be dislodged only by cogent and clinching material and so long as such a conclusion is not drawn, a duty in good faith should be presumed to have been done or purported to have been done in exercise of the powers conferred under the statute."
Learned Senior counsel submits that petitioner-Gautam Cheema had performed the duty of being a vigilant police officer as on receiving an in- formation from petitioner Aryan Singh that a proclaimed offender Sumedh Gulati is present in Max Hospital, he directed him to give information to the concerned Police Station and get him arrested and, therefore, no of- fence is made out.
Learned Senior Counsel has then referred to Manoj Kumar Sharma and others Vs. State of Chhattisgarh and another, wherein the follow- ing observation was made :-
21) While discussing the scope and ambit of Section 482 of the Code, a similar view has been taken by a Division Bench of this Court in Rajiv Thapar and Others vs. Madan Lal Kapoor (2013) 3 SCC 330 wherein it was held as under:-
"29. The issue being examined in the instant case is the jurisdic- tion of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the 21 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case - 22 -
commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the mate- rial produced by the accused is such that would lead to the con- clusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations con- tained in the accusations levelled by the prosecution/com- plainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alterna- tively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exer- cise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice."
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Learned Senior Counsel has argued that since it is own case of the husband and wife duo Kripsy Khera and Devender Singh Gill that they were known to the petitioner previously, the impugned FIR has been regis- tered in a calculated manner as Sumedh Gulati, who was a proclaimed offender in the same FIR along with aforesaid Devinder Singh Gill, who was also a proclaimed offender.
Mr. Aman Pal, Advocate, the counsel for petitioner-Aryan Singh has argued that except for the allegation that he has communicated the information to petitioner Gautam Cheema IG that a proclaimed offender Sumedh Gulati is present at Max Hospital, there is no evidence against him and he was not even arrayed as an accused by the Punjab Police at the time of registration of FIR No.195 and he has been now cited as an accused by the CBI. It is also argued that the prosecution of accused without following procedure under Section 195 Cr.P.C. is patently illegal.
Reply on behalf of victim-complainant ASI Dilbagh Singh respondent No.2 is also filed and in para 7 of the reply it is admitted that Aryan Singh has called the police by giving information about the proclaimed offender and police got him arrested from the Max Hospital, Mohali. It is also admitted in para 11-B that petitioner-Aryan Singh was not present at the spot as per the CCTV footage of Max Hospital, which is part of the challan and he registered the FIR No.195 on the directions of SP, Mohali.
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Reply by way of affidavit of CBI is filed, in which certain preliminary objections have been taken.
The learned Senior counsel for the CBI at the first instance has submitted that the investigation was transferred from the State Police to the CBI on a petition filed by Kricpy Khera and her husband Devinder Pal Gill and, therefore, it is argued that they should be impleaded as a party, however, on a Court query, he has fairly conceded that Kricpy Khera is complainant in FIR No.135 and in the present FIR No.195, which was later on transferred to CBI, the complainant was ASI Gurbachan Singh, who is arrayed as respondent No.2. However, it is submitted that both the cases were clubbed together and both the FIRs were transferred to CBI.
It is submitted that in terms of the judgment of the Hon'ble Supreme Court in Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra & others, certain guidelines have been given for exercise of power under Section 482 Cr.P.C. for quashing of the criminal proceedings/complaint and the case of the petitioner do not fall in the same. The directions of the Hon'ble Supreme Court in Neeharika's case (Supra) reads as under :-
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
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ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
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xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/sum- mary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power 26 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case - 27 -
under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investi- gate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not be- fore the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Sec- tion 173 Cr.P.C., while dismissing/disposing of the quash- ing petition under Section 482 Cr.P.C. and/or under Arti- cle 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an 27 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case - 28 -
exceptional case is made out for grant of interim stay of further investigation, after considering the broad parame- ters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India."
The learned State Counsel in Para 3 of the reply filed by the CBI, it is stated as under :-
"3. That the investigation conducted by CBI disclosed that accused Gautam Cheema along with co- accused persons, namely, Ajay Choudhary, Varun Utreja, M. Rashmi Negi, Vicky Kumar and Aryan in connivance with each other got Sumedh Gulati, PO arrested."
It is also submitted that, later on, petitioner-Gautam Cheema took away Sumedh Gulati from the legal custody of Dilbagh Singh and took him to Max Hospital, where he entered Room No.2202, which was occupied by Kricpy Khera and gave a slap to Sumedh Gulati and threatened Krispy Khera for which, she recorded a separate FIR No.135. Reliance has also been placed on the Whatsapp Chat between both the petitioners Gautam Cheema and Aryan Singh which suggest that Gautam Cheema informed Aryan Singh that Munna Singh is at Max Hospital and he could be taken by Mohali Police. It is submitted that on conclusion of the investigation it is found that aforesaid offences prima facie are made out.
Learned Senior counsel for CBI has also referred to 2004(1) RCR (Criminal) 233 State of Madhya Pradesh VS. Awadh Kishore Gupta 28 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case - 29 -
and others, to submit that where the case is at the investigation stage, the High Court should not quash the FIR as it is not permissible to look into the material available on record. It is also submitted that the Court should not act on annexures attached to the petition under Section 482 Cr.P.C. which cannot be termed as evidence without being tested and proved.
Learned Senior Counsel for CBI has next relied upon 2006(1) RCR (Criminal) 324 State of Orrisa and another Vs. Saroj Kumar Sahoo, wherein the Hon'ble Supreme Court has held that at the stage of framing of charge, Court has only to examine prima facie the existence of sufficient ground for proceeding against the accused and Court can evaluate the material and documents on record.
The counsel has next relied upon 2004(3) RCR (Criminal) 831 State of Andra Pradesh Vs. Coloconda Linga Swamy and another, wherein it has been held by the Hon'ble Supreme Court that while exercising the power under Section 482 Cr.P.C., the Court does not function as Court of appeal or revision and the inherent jurisdiction under Section 482 Cr.P.C. through wide has to be exercised sparingly, carefully and with caution in terms of Bhajan Lal's case (supra).
Learned Senior counsel for the CBI, in reply to the arguments raised by the learned Senior Counsel for the petitioner that while transferring the investigation from Punjab Police to CBI, the petitioner who are the accused in the FIR are not required to be heard has referred to 2018(3) RCR (Criminal) 111 E. Sivakumar Vs. Union of India and others, wherein the Hon'ble Supreme Court has so observed.
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Similar view has been taken by Hon'ble the Supreme Court in 2014(2) RCR (Criminal) 19 Dinubhai Boghabhai Solanki Vs. State of Gujarat and others.
In reply, learned Senior Counsel for the petitioner has submitted that though the investigation was transferred to CBI at the instance of Krispy Khera and her husband Devinder Singh Gill against whom there are many FIRs pending for cheating innocent people, however, they are not victims/complainants in the present FIR No.196 and, therefore, ASI Dilbagh Singh, who is the informer in the FIR is impleaded as a party.
After hearing the learned Senior Counsel for the parties; on bare reading of FIRs; order dated 4.3.2020 and report submitted by the CBI, the Court finds merit in both the petitions for the following reasons :-
(1) The transfer of investigation as per the order dated 4.3.2020 has virtually come to the rescue of the petitioner being a "Boon in Disguise". In this order, following two reasons were given for transferring the investigation:-
(a) The FIR was registered in 2014 and multiple SITs constituted by the State were unable to conclude the investigation till the order was passed in March, 2020 transferring investigation to CBI.
(b) The allegation against Gautam Cheema are that he being a senior Police Officer is influencing the investigation as noticed in para 14 of the order and the
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investigation is transferred/entrusted from one SIT to another SIT, which is subsidiary agency of the Punjab Police and, therefore, the investigation do not inspire confidence and there is property dispute done by the accused which need to be investigated in the background of the allegation that a person from Punjab Police is indulging in Benami transactions. (2) A perusal of the report submitted by CBI under Section 173 Cr.P.C., negates the above observation of the Court. In the entire report there is no allegation that during investigation CBI find any Benami transactions done by petitioner-Gautam Cheema, which was the main reason for transferring the investigation.
(3) Even with regard to the influence exercised by the petitioner on the SIT constituted by the State Police, nothing has come in Section 173 Cr.P.C. report submitted by the CBI that the petitioner has influenced any Police Officer of Punjab Police to do any favour to him. (4) With regard to the allegation leveled in the FIR that complainant- ASI Dilbagh Singh received an information in Police Station Phase-1, Mohali that a person, namely, Sumedh Gulati, who is a proclaimed offender in FIR No.62 dated 23.3.2014 under Sections 420, 467, 467, 471 and 120-B IPC is present in the Max Hospital and, later on, he was taken in custody and in the meantime, Gautam Cheema, who was IG (Information and Technology and Telecommunication-II, Punjab) came in an inebriated 31 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case - 32 -
condition and took Sumedh Gulati with him in his private car, are not proved.
(i) There is no medical record of petitioner-Gautam Cheema that he was in an inebriated condition;
(ii) No CCTV footage of the Police Station Phase-1, Mataur is part of the investigation to show that Gautam Cheema visited the Police Station;
(iii) There is no DDR entry showing the arrest of proclaimed offender Sumedh Gulati;
(iv) Rather, CBI investigation as per Para No.16.20 of the challan show that petitioner-Gautam Cheema came in a separate car, proclaimed offender Sumedh Gulati along with his wife came in another car and ASI Dilbagh Singh came in third car and, later on, ASI Dilbagh Singh took petitioner- Sumedh Gulati, proclaimed offender with him and only, thereafter, he registered the DDR in the Police Station regarding his arrest.
Therefore, the investigation is silent about any evidence to prove visiting of petitioner-Gautam Cheema in the Police Station, where he allegedly abducted Sumedh Gulati, a proclaimed offender. Rather, the investigation reveals that it is petitioner-Aryan Singh, who informed Gautam Cheema about 32 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case - 33 -
the movement of Sumedh Gulati, proclaimed offender and petitioner-Gautam Cheema told him to inform the police. Therefore, as per the investigation, both the petitioners, being vigilant citizen have rightly informed the police about the free movement of a proclaimed offender. Therefore, the prosecution of petitioner-Aryan Singh in just informing the police about the presence of Sumedh Gulati, a proclaimed offender is nothing but the misuse of process of law as every citizen is duty bound to inform the police in such circumstances.
(5) Though it is stated by complainant ASI Dilbagh Singh that petitioner-Gautam Cheema, IG has taken Sumedh Gulati, proclaimed offender in his car to Max Hospital, however, as per the CBI on investigation in para No.16.20, it is stated that Gautam Cheema arrived at Max Hospital in a black car driven by co-accused Varun Utreja and Vicky Verma, which was followed by another Innova car in which Sumedh Gulati and his wife were brought to the Max Hospital and all of them entered the hospital and after 05 minutes, complainant ASI Dilbagh Singh also reached the Hospital in a TATA Indigo car and after some time, ASI Dilbagh Singh took Sumedh Gulati, proclaimed offender along with him in the said TATA Indigo car. This part of investigation belies the police FIR version of ASI Dilbagh Singh that Gautam Cheema forcibly took Sumedh Gulati in his car as the CCTV footage of Max Hospital clearly shows that Sumedh Gulati and his wife came in a different car.
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(6) Nothing has come in the investigation that Sumedh Gulati and
his wife were in illegal confinement of either of the accused as it is own case of ASI Dilbagh Singh that he himself followed the car of accused persons and reached Max Hospital and, therefore, he brought Sumedh Gulati back.
(7) Insofar as the offences under Sections 452, 323, 365, 342, 225, 186, 506 120-B IPC are concerned in para 16.15, it has come in the investigation of CBI that petitioner Gautam Cheema slapped Sumedh Gulati, proclaimed offender and in the absence of any MLR of Sumedh Gulati, no cognizable offence is made out. In the absence of any CCTV footage of Police Station Phase-1 or DDR regarding Sumedh Gulati in the report under Section 173(2) Cr.P.C. nothing has come that petitoner- Gautam Cheema ever visited Police Station, Phase-1, Mataur. (8) With regard to petitioner-Aryan Singh, no overact is attributed, except that he has given information that Sumedh Gulati, a proclaimed offender in the aforesaid FIR No.62 is present at Max Hospital and being a vigilant citizen he has only performed his duty to inform the police about the proclaimed offender.
(9) The malicious prosecution of the petitioners at the hands of Krispy Khera and her husband Devinder Singh Gill is apparent on record, especially in view of the contention raised by them as noticed in the order dated 4.3.2020, which were duly considered while transferring the investigation. One of the arguments noticed in the said order was that 34 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case - 35 -
petitioner-Gautam Cheema has amassed Benami property which is not at all proved from the 173(2) Cr.P.C. report submitted by the CBI. Moreover, the mala fide on the part of the husband Devinder Singh Gill and Sumedh Gulati, proclaimed offender is also apparent from the fact that Sumedh Gulati was proclaimed offender in the same FIR, where Devinder Singh Gill was also a proclaimed offender. Secondly, Sumedh Gulati was present at Max Hospital, where Devinder Singh Gill's wife Krispy Khera was admitted and he was avoiding the process of law. Thirdly, as per prosecution when information was given by Aryan Singh to police, he was picked by the police and when he was taken to Police Station Phase-1, Mataur, no DDR was registered regarding his arrest. Fourthly, the allegations that petitioner-Gautam Cheema came to the Police Station and brought him to Max Hospital in his own car is not proved from the CBI investigation as Gautam Cheema came in one car, Sumedh Gulati and his wife in second car and ASI Dilbagh Singh came in third car. Fifthly, it has also come in the investigation that the DDR was registered when ASI Dilbagh Singh only after he took Sumedh Gulati with him from the Max Hospital and, therefore, from the investigation of the CBI, the allegation against petitioner-Gautam Cheema regarding visiting of Police Station and forcibly taking Sumedh Gulati are allegations levelled with mala fide motive. Lastly, as Krispy Khera, Devinder Pal Gill and Sumedh Gulati are facing criminal prosecution in many FIRs, they are creating defence that at the instance of petitioner-Gautam Cheema, being a Senior Police Officer, they are being repeatedly involved though none of the petitioners is a 35 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case - 36 -
complainant, in the above said FIRs against them and all these circumstances lead to a conclusion that petitioners are facing malicious prosecution.
The investigation further suggests that Gautam Cheema slapped Sumedh Gulati, proclaimed offender in the Max Hospital or threatened him by Krispy Khera also suggest that in a calculated manner with mala fide intention malicious allegations are levelled in the FIR and the entire prosecution of both the petitioners for the last eight years is mala fide.
Even ass per reply, ASI Dilbagh Singh has not levelled any allegation against petitioner-Aryan Singh.
Therefore, in view of the well settled principal of law in Bhajan Lal's and Neeharika's case, this Court find this prosecution of petitioners is malicious and in view of the judgments of Hon'ble the Supreme Court passed in Saroj Kumar Sahoo's, Coloconda Linga Swamy's, E.Sivakumar's and Dinubhai Boghabhai Solanki's case, the prosecution against the petitioners is liable to be quashed.
Accordingly, the present petitions are allowed; FIR No.195 registered by the Punjab Police and FIR No.RC0512020S0001 dated 29.4.2020 registered at Police Station State Crime Branch, Chandigarh under Sections 452, 323, 365, 342, 186, 225, 506 and 120-B IPC (earlier registered as FIR No.195 dated 30.8.2014 under Sections 452, 323, 365, 342, 225, 186, 506, 120-B IPC at Police Station Phase-1, Mohali) registered by the CBI, on the direction of this Court, the report submitted under 36 of 37 ::: Downloaded on - 05-05-2022 01:34:45 ::: CRM-M-54107-2021 and connected case - 37 -
Section 173(2) Cr.P.C. and the impugned order dated 4.3.2020 framing of charges are, hereby, quashed.
( ARVIND SINGH SANGWAN )
May 04, 2022 JUDGE
satish
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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